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What Now? Judge Rules Affordable Care Act Is Unconstitutional

STEVE INSKEEP, HOST:

Here is the reasoning behind a federal judge's ruling against the Affordable Care Act. Obamacare includes a mandate to buy health insurance. There used to be a tax penalty if you didn't. Courts found that legal because Congress has the power to tax. But last year's tax bill eliminated the penalty. Now the judge in Texas says there's no authority for the mandate. Therefore, the entire law must go. What does that mean? Well, Zeke Emanuel is in our studios again. He worked on the Affordable Care Act under President Obama. Welcome back.

EZEKIEL EMANUEL: Good to be here.

INSKEEP: Is the law in serious danger?

EMANUEL: I don't think so. It's a kind of silly ruling. Even conservative legal scholars think it's a silly ruling. The mandate had, as you mentioned, no teeth because there was no tax penalty. And so it turns out it's not essential to the law. And if it's not essential to the law, you can't invalidate the whole Affordable Care Act just because the mandate might not be operative anymore.

INSKEEP: Although the judge is saying in his ruling, that may make sense, but I've got to go on the actual wording of the law. And the law is not severable, as they say. And this part doesn't work. Therefore, none of it works.

EMANUEL: Well, that was true maybe in the 2010 version but not the post-December 2017, when the tax law changed the Affordable Care Act. One of the things I like to emphasize, certainly, to my students at the University of Pennsylvania is the ACA is over 900 pages long. The coverage sections are 225 pages. And those covered sections include not just the exchanges where the mandate is important but Medicaid. So it's a small part of the law. There's many other things in the law where the mandate has no effect, like changes to how we pay doctors, changes to try to incentivize - improve quality, penalties to hospitals that have too many hospital-acquired infections and other problems. Those things have nothing to do with the mandate. So the judge here is just way overstepping in his decision.

INSKEEP: So you are not worried at all that this would be upheld on appeal?

EMANUEL: I lost no sleep last night or on Friday night.

INSKEEP: (Laughter) OK, that's fine. Let me ask about the law itself because we have just gotten through the end of open enrollment. Is this law working, in your judgment?

EMANUEL: Oh, it's working hugely and better than anyone thought. I mean, we saw last week that health care inflation was down at 3.2 percent in the country, which is remarkably low. You also see that the law is actually popular. The insurance companies came out against this judge. The hospitals came out against this judge. The American Medical Association came out against this judge. The ACA is the framework for health care going forward. It's incentivizing more efficiency. It's actually led to lower costs for the last seven years. So it's actually working pretty well.

INSKEEP: I want to ask about costs because you alluded to health care inflation being down, some lower costs being down. It is true that in 2018 - we've reported this - some people are paying lower health insurance premiums than they would've been - a few percentage points down. Yet we have also noted that is after huge increases the several years before. Health insurance costs are still really, really high, aren't they?

EMANUEL: Oh, yes. They are very high. A family of four getting employer-sponsored insurance is over $19,000 - way high. But the growth rate, as we like to say, has actually come down. And that come-down, that decline in the growth rate has a lot to do with the fact that the Affordable Care Act changed how people think about health care. We're now thinking more in the health care system about eliminating unnecessary care, reducing inefficiencies in the system. And we see that in the numbers. Actually, the utilization of services is going down because doctors are not ordering as many unnecessary tests. The big problem now is prices, high prices in the health care field - you know, $2,500 for an MRI and things like that.

INSKEEP: And there are still a lot of incentives built into the system for doctors and hospitals to just charge for things and see if they get paid.

EMANUEL: Right. And also drugs. Drugs are a big portion of those price differences. And that's where you're going to see focus over the next five years - in bringing those prices down and the exorbitant prices in many areas down. And I think private insurance companies are going to do that. You're going to see some action on that on the part of Medicare. And I think that's probably going to bring health care costs down. I've predicted a long period of relatively low health care inflation. And I do think we're getting there.

INSKEEP: Zeke Emanuel, thanks for coming by. Always a pleasure talking with you.

EMANUEL: It's my pleasure to be at NPR.

INSKEEP: He served under President Obama, worked on the Affordable Care Act. Transcript provided by NPR, Copyright NPR.